Posts Tagged “Defamation Bill 2006”
 As recently prefigured on this blog, the Government has indeed used the legislative guillotine to force through their final amendments to the Defamation Bill, 2006. According to the RTÉ news website:
The legislation to revise the country’s libel laws has been passed in the Dáil and will now go to the Seanad. …
Update (9 July 2009): Dáil debate focuses on Defamation Bill (Irish Times); Libel and blasphemy bill passed by the Dail (Irish Independent); Dáil Debate (Vol 687, No 4; 8 July 2009).
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As I have said before on this site, the best reason for freedom of expression is commentary like this, from the always-incisive Martyn Turner in the Irish Times on Friday (03 July 2009) (click on the image for the full-size version from the Irish Times website):
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In this morning’s Irish Times:
The Bill to reform Ireland’s libel laws is likely to be enacted within a fortnight, three years after it was published. The Defamation Bill was introduced by then minister for justice Michael McDowell in 2006 to repeal the existing legislation which dates from 1961.
The original government decision to approve the drafting of the new Bill was made as far back as June 2005 … the remaining stages of the Bill will be taken in the Dáil and Seanad over the next two weeks, with the Bill expected to complete its passage through the Oireachtas on July 10th, the last sitting day before the summer recess.
After dragging their heels for so long, this is to be achieved by means of a legislative guillotine:
A guillotine on housing legislation allowed just one minute and 20 seconds for each of the 170 amendments to be dealt with, Labour whip Emmet Stagg told the Dáil in repeated criticism of end-of-term deadlines. …
A further sotry in the same edition of the Irish Times lists Bills which are likely to be guillotined, including the Defamation Bill:
The Government will “guillotine” debate on at least 17 Bills in the last three weeks of the Dáil before the summer recess, Opposition parties have claimed. According to the whips for Fine Gael and Labour, the Government is rushing an unprecedented number of Bills through the Dáil between now and July 10th and forcing votes without allowing proper debate. … The schedule of legislation includes two separate Criminal Justice Bills, legislation for the €200 second home tax, an Aviation Bill, the Health Insurance Bill, the Bill for the second Lisbon referendum, the Bill ending pensions paid to serving Ministers, as well as the concluding stages of the Defamation Bill.
I’m not really in favour of legislative guillotines, but I’m prepared to make an exception for this long-delayed Bill, which has many serious flaws but is still on balance much better than the current position. Roll on July 10th!
Bonus links. First, following on from my discussion of the Irish Creative Commons licence, Karlin Lillington has an excellent artice on it in today’s Irish Times: Free and easy way to online licensing enters the mainstream
Second, the same edition of the paper has a rather charming story from the archives (sub req’d) of how Dorothy McArdle found herself the inadvertent victim of Irish censorship during the second World War over an issue of the ground-breaking British Picture Post photo journalism magazine.
Note (26 June 2009) This post has been revised slightly since it was first posted.
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 A little more than a month ago, I wondered why legislators are so loath to repeal criminal libel provisions. However, in a subsequent post, I acknowledged that section 34 of the Defamation Bill, 2006 as introduced provided for the abolition of the common law offences of criminal libel, seditious libel and obscene libel. It now seems that I wrote too soon and that my original skepticism was justified. No sooner had my fingers left the keyboard on the second post than news came that the Bill had returned to the top of the legislative agenda. The Committee on Justice, Equality, Defence and Women’s Rights has begun the Committee Stage of the Bill. Several amendments (pdf) are being considered, almost all of which are retrenchments upon the advances made in earlier drafts of the Bill.
It seems to me that the longer it takes to enact the Bill, the more restrictive it becomes. Nowhere is this more true than in the case of criminal libel. Head 65(1) of the draft Bill appended to the Report of the Legal Advisory Group on Defamation (disclosure: I was a member of the Group) provided for the abolition of the common law offences of criminal, blasphemous, seditious and obscene libel. This would have been a good step forward. However, in the Bill as introduced, the step forward proposed in Head 65(1) had become a little more faltering. The equivalent provision, section 34, provided for the abolition of the common law offences of criminal libel, seditious libel and obscene libel. The reference to blasphemous libel had disappeared. It now seems that this conjouring trick was to make way for the introduction into the Bill of a new crime of blasphemy (see the new section 35 proposed by amendment 40 in the list of amendments currently being considered by the Committee, and to which I shall return on this blog). But, bad as this is, there’s worse. The faltering step forward represented by section 34 as introduced is now to be further amended, to provide:
The offence of defamatory libel is abolished.
The references to seditious and obscene libel have been removed, so they are no longer to be abolished. These are two regrettable, not to say retrograde, steps.
Although the last sentence of Article 40.6.1.(i) of the Constitution does require that blasphemy, sedition and indecency should be offences punishable by law, nevertheless, the first part of that provision guarantees liberty for the exercise of citizens’ rights to express freely their convictions and opinions. It is trite law that rights should be accorded the fullest possible protection and that restrictions should be as narrowly drawn as possible. If ever there was a case for the broad application of a right and a narrow ambit for a restriction, it is provided by the common law libel offences. They are ugly offences; together, they stand as a reproach to democracy, and an affront to the values of pluralism, tolerance and broad-mindedness. Let us have the original version of Head 65(1). Thereafter, we can have a debate about alternative legislation, which deals with blasphemy, sedition and indecency on their own terms rather than as aspects of criminal libel, and which sets them out within as narrow a compass as possible. This probably too much to hope for, though it is the least that the Minister should do.
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With all the coverage of Government ins and outs at Minister of State level, it was easy to miss yesterday’s announcement by Government Chief Whip Pat Carey of the Legislative Programme for the coming parliamentary session (Irish Times report | Government press release). According to the Dáil Éireann Order Paper for 22 April 2009 (pdf), this continues to include the long-delayed Defamation Bill, 2006. The Minister for Justice, Dermot Ahern, has recently stated his hope that the Bill would become law by the Summer, so its continuing inclusion on the Order Paper is to be welcomed. It is currently becalmed in the Joint Committee on Justice, Equality, Defence and Women’s Rights. That committee completed its work on the Tribunals of Inquiry Bill, 2005 at its last sitting earlier this month, and is scheduled (pdf; see also here) to take up the Arbitration Bill, 2008 today. To stand any chance of enactment either side of the Summer, the Defamation Bill will have to be taken next. As to that, we shall have to wait and see.
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 I wonder whether anyone has suggested that Conor Casby’s caricatures of Cowen constitute a seditious libel? It’s not that fanciful a question: the common law crime still exists, and has been used against milder criticism. But the mere fact that the question can be asked in this context demonstrates just how ridiculous the crime actually is. It’s on the way out in Australia. Now, thankfully, its days may now finally be numbered, both in Ireland and in the UK too!
As for Ireland, the Minister for Justice suggested this week that we could see the enactment of the Defamation Bill, 2006 before the summer. Since it was introduced in July 2006, the Bill has suffered more delays than Ryanair, to say nothing of the long journey to reach that point which began with the work of the Law Reform Commission in 1991 (Consultation Paper and Report on the Civil Law of Defamation; Consultation Paper and Report on the Crime of Libel). The tortuous passage of this Bill through the Oireachtas has taken so long that I won’t hold my breath, but the fact that it is likely to recommence its less-than-steady progress is welcome news nonetheless. One of the many great benefits of this enactment will be the abolition of the common law crime of seditious libel. Section 34 of the Bill as introduced provides:
The common law offences of criminal libel, seditious libel and obscene libel are abolished.
Section 35 provides for the enactment of a new, much narrower and much more focussed, offence of publication of gravely harmful statements to replace these abolished common law offence. [Update: as Daithí points out in the comments below, this section has been removed from the Bill]. In the United Kingdom, Evan Harris MP has been working to achieve the same end. Writing at Index on Censorship yesterday, he explained his efforts:
The UK government’s retention of this archaic legislation only serves to justify oppression in other countries, writes Evan Harris
In 1763, journalist John Wilkes and 49 of his publishers were arrested for seditious libel. Their crime was to have written and disseminated an editorial criticising the state, in the person of King George III.
It would be unthinkable for the state to use such power today — but nearly 250 years on, the laws of sedition still sit in this country’s statute books. … It is not acceptable that 21st-century Britain hasn’t got rid of these laws yet. That’s why I, along with English PEN, Index on Censorship, Liberty, Article 19, and many others, have come together to campaign for their abolition. The Coroners and Justice Bill is currently making its tortuous way through Parliament, and it is a large beast of a bill which is a struggle to scrutinise. But such a portmanteau bill is the opportunity I have been looking for to table amendments which would repeal these ridiculous bits of legislation. …
… Writers, journalists, activists, and citizens worldwide are looking to Britain to lead the way. After all, how can we criticise other nations, when we haven’t got our own house in order? John Wilkes would be turning in his grave. As comedian and activist Mark Thomas has said, ‘I hope MPs will weed out the ancient, twisted law of seditious libel so I can get on with the job of describing them accurately.’
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 Three stories from today’s Irish Times caught my eye. First, the good. The Press Council of Ireland and the Office of the Press Ombudsman launched their first annual report yesterday. The press industry undoubtedly did a good thing in establishing the Press Council and the Ombudsman, and yesterday’s report on the first year of operation shows the wisdom of that decision. The launch of the report is covered in the Home News section of the Irish Times, and welcomed in the lead editorial . From the report [with added links]:
AGGRIEVED READERS made over 370 complaints about newspapers and magazines last year during the Press Ombudsman’s first year of work, his annual report reveals. … Reviewing the performance of the Press Council of Ireland and the Office of the Press Ombudsman in their annual report published yesterday, council chairman Prof Tom Mitchell said the innovative and effective regulatory system offered significant benefits to the press and public. …
Moreover, speaking at the launch, the Minister for Justice, Dermot Ahern, said he hoped that the long-delayed Defamation Bill, 2006 would become law by the summer, an aspiration which Prof Mitchell greeted as “wonderful news”.
Second, the bad. Well, it’s no much that it’s bad as that it’s not enough. At present, Irish broadcasting law bans political advertising, and tightly regulates religious advertising. It was originally intended simply to restate this position in the Broadcasting Bill, 2006, but the Minister for Communications, Eamon Ryan, has announced that the restrictions on religious advertisements. This, too, is a good thing. But it is not enough of a good thing. The ban on political advertising should also have been revisited. And the failure to address this issue is a bad thing. From the report:
MINISTER FOR Communications Eamon Ryan will soften current restrictions on religious advertisements that are broadcast on television and radio. … “Advertising shouldn’t be used for promoting a particular religion or as an agent for recruitment. At the same time, I don’t want to completely restrict advertising that has a religious connotation.” …
Third, the ugly. And this is downright ugly. When the Defamation Bill, 2006 was introduced into the Seanad, it had an ugly twin, the Privacy Bill, 2006. However, as the Defamation Bill proceeded on its fitful way through the Oireachtas [Parliament], the Privacy Bill seemed to fade. Now, it is back with a bang. I do not for one moment doubt that Irish law on privacy is in need of reform, but I likewise do not think that the Privacy Bill as it was introduced in 2006 is the answer to that need. It was overly-restrictive on the meida, whilst ignoring almost every other aspect of privacy protection (eg, cctv, online privacy, genetic privacy, and so on). It now seems that the revived Bill will address some at least of those other issue, but the tone of the Minister’s comments yesterday suggest that the draconian media provisions will remain. And if they do, that would be an ugly thing. From the report:
MINISTER FOR Justice Dermot Ahern has revived plans to introduce laws to protect the privacy of individuals, citing a “worrying trend in media intrusion in order to get a good story”.
Yesterday, however, Mr Ahern announced he planned to inject fresh momentum into the Bill by updating its provisions to reflect recent legal and technological developments. … The violation of privacy was not the exclusive preserve of the media, he said, and many complaints over privacy now concerned actions by individual citizens against others. …
He made these comments at the launch of the Press Ombudsman’s annual report referred to above, and today’s Irish Independent’s report of the launch led with this aspect of his speech. This was where he made his comments on the prospects for the Defamation Bill’s eventual enactment (which I think is a good thing). But he said that he had “misgivings” about the defence of reasonable publication. And if these misgivings translate into the removal of the defence from the Bill, that would be a very ugly thing indeed.
Update (5 April 2009): Leave Press Council to do its work: in the Sunday Independent, Emer O’Kelly argues that the Government’s plan to amend the law on privacy will restrict freedom of enquiry, and it would be better if the Press Ombudsman and Press Council were to develop a body of decisions to cover the area.
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 Article XIX, the Global Campaign for Freedom of Expression, is an international human rights organisation which defends and promotes freedom of expression and access to information worldwide. Defamation is one of the Global Issues on which they focus. Indeed, their 2000 Defining Defamation report (pdf) seeks to set out an appropriate balance between the human right to freedom of expression and the need to protect individual reputations. Principle 4 of this document, concerning criminal defamation, provides
(a) All criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws. Steps should be taken, in those States which still have criminal defamation laws in place, to progressively implement this Principle.
 Unsurprisingly, therefore, they have this week published an overview of worldwide defamation trends, which they have enlivened with interactive maps of applicable legislation and punishments. They simply record that, for both Ireland and the UK, there are civil and criminal sanctions for defamation. But, in a parallel development, they have lobbied (letter | press release (both pdfs)) the UK government to accept an amendment of the Coroners and Justice Bill 2008 put down by Dr Evan Harris, MP which would abolish criminal libel in the UK. [Update: see also Index on Censorship here and here] Harris told the Times:
Seditious libel and criminal defamation laws are a stain on our legal system and a terrible example to set in a world where free expression is so often restricted and oppressed. Parliament should sieze this chance to get rid of them.
In the same article, Geoffrey Robertson QC said
These laws have an inglorious history. They were deployed by the King’s lick-spittle judges in the Star Chamber to torture puritans, and later used against John Wilkes and Tom Paine’s publishers. Their continuing existence serves only to provide an excuse for modern despots when they jail their critics – they always claim that they are merely using laws that are also on the UK statute book. It is time to expunge them.
A wonderful discussion of these cases is provided by Lord Walker’s Bentham Club Presidential Address on Security, Freedom of Speech and Criminal Justice in the age of Pitt, Burke and Fox (pdf).
Consequently, the amendment proposed by Harris simply provided:
The offences of sedition and seditious libel under the common law of England and Wales are abolished.
However, the House of Commons website records that the amendment was not taken during the debate. This is a pity, and I hope that it can be taken when the Bill is debated again. I have already blogged extensively about a similar Irish effort (here, here, here, here, here and here) in Part 5 of the still-delayed Defamation Bill, 2006. Whatever happened to that? Indeed, as the title question asks: why are legislators so loath to repeal criminal libel provisions?
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